State Economic and Trade Commission of the PRC
December 13, 2002
Chapter 1 General Provisions
Article 1 The Provisions are promulgated in order to regulate the investigation and determination of industry injury of anti-dumping pursuant to the Regulations on Anti-dumping of the People's Republic of China (hereinafter Anti-dumping Regulations).
Article 2 The Provisions shall apply to any activity in relation to applications for initiating anti-dumping investigations, investigations and determinations of industry injuries pursuant to the Anti-dumping Regulations.
Article 3 The State Economic and Trade Commission (hereinafter as SETC) shall be responsible for the investigation and determination of antidumping industry injuries. SETC and the Ministry of Agriculture shall conduct the investigations of industry injuries concerning agriculture jointly.
Article 4 The Bureau for Industry Injury Investigation under the SETC shall be responsible for the implementation of the Provisions.
Chapter 2 The Determination of Causal Relationship
Article 5 Injury shall mean material injury or threat of material injury to an existing domestic industry or material retardation of the establishment of such an industry.
Material injury shall mean the injury that has been caused to domestic industry that is not neglectable.
The threat to material injury shall mean that material injury has not occurred yet but there is evidence showing that if no measure is taken, material injury to domestic industry is inevitable.
Material retardation shall mean that there is no material injury or threat of such, but the establishment of such an industry is substantially retarded.
Article 6 A determination of material injury to the domestic industry shall take into consideration the following factors:
6.1 whether there has been a significant increase in the volume of the dumped imports, either in absolute terms or relative to production or consumption of domestic similar productsŁ»
6.2 whether there has been a significant price undercutting by the dumped imports as compared with the price of domestic similar products, or whether the price of domestic similar products has been depressed to a significant degree;
6.3 the overall impact of dumped imports on all relevant economic factors and indices of domestic industry, including the actual and potential decline in sales, profit, output, market share, productivity, return on investment, or utilization of capacity; factors affecting domestic prices; the magnitude of the margin of dumping; actual and potential negative impact on cash flow, inventories, employment, wages, growth, ability to raise capital or investments.
6.4 the export capacity, production capacity and inventories of the exporting country (region) or country (region) of origin of the dumped imports;
6.5 Other factors
Article 7 A determination of a threat of material injury to domestic industry shall take into consideration the following factors:
7.1 a significant increase of dumped imports or the likelihood of substantially increased imports;
7.2 the depressing or suppressing effect of dumped imports on the prices of domestic similar products, or the likelihood of such depressing and suppressingŁ»
7.3 the actual and potential capacities of production and exportation of exporters or related exporters in the exporting country (region) or country (region) of origin of dumped imports;
7.4 inventories of dumped imports in the exporting country (region) or country (region) of origin; the trend of inventories' fluctuation of exporters or related exporters;
7.5 impact of dumped imports on the domestic industry or the likelihood of such impact;
7.6 the impact of the dumped imports on the market of a third country (region);
7.7 Other factors
A determination of a threat of material injury shall be based on facts and not merely on allegation, conjecture or remote possibility.
Article 8 A determination of the retardation of the establishment of the domestic industry shall take into consideration of the following factors:
8.1 the establishment and preparation for establishment of domestic industry;
8.2 the growth of domestic demand and its implications;
8.3 the impact of dumped imports on domestic market;
8.4 the subsequent production capacity and trend of development in domestic market of dumped imports;
8.5 Other factors.
Article 9 A determination of a causal relationship between the dumped imports and the injury to the domestic industry shall be based on an examination of all relevant factors and indices comprehensively and objectively by the SETC. Factors other than the dumped imports, which at the same time are causing injuries to the domestic industry must not be attributed to the dumped imports. The factors in this respect include, inter alia, contraction in demand or change in the patterns of consumption, trade restrictive practices of and competition between foreign and domestic producers, the import performance of dumped imports in other countries (regions), technology development, export performance and productivity of domestic industry, force majeure.
Article 10 Similar products in these Provisions shall mean a product which is identical to the dumped imports; or in absence of such an identical product, a product which has characteristics that most closely resemble those of the dumped imports.
Article 11 A determination of a similar product may take into consideration the following factors: physical and chemical attributes, use, manufacturing equipment and process, evaluation of consumers and producers, substitutability, sales channels and price.
Article 12 The impact of dumped imports shall be assessed in relation to the domestic production of a similar product when separate identification of that production is possible. When such separate identification is not possible, the impact of the dumped imports shall be assessed by examination of the production of the narrowest group or range of products, including the similar product.
Article 13 SETC may exclude the investigated products or part of the products that have not caused injury to domestic industry. Anti-dumping measures shall not apply to the excluded products.
Article 14 Domestic industry shall refer to the domestic producers as a whole of the similar product/s, or those of the producers whose collective output of the products constitutes a major proportion of the total domestic production of those similar products; however, producers who are related to exporters or importers or who are themselves importers of similar products shall be excluded from the domestic industry.
"Being related" as referred to in the previous Article 14 shall mean a situation where one of the parties directly or indirectly controls the other; or both of them are directly or indirectly controlled by a third person; or together they directly or indirectly control a third person.
Article 15 A determination of regional industry shall be based on the following factors:
15.1 the producers sell all or most of their production of the similar product within that regional market;
15.2 The demand in the market is not at all or is not to a substantial degree supplied by producers of the similar products located elsewhere in the territory;
15.3 Other factors
Article 16 Where imports of a product from more than one country (region) are subject to anti-dumping investigation, SETC may cumulatively assess the impact of such dumped imports if it is determined that:
16.1 the dumping margin of the dumped imports from each country is not less than 2% and the volume of the imports from each country is not negligible;
16.2 a cumulative assessment of the impact of the imported products is appropriate in the light of the conditions of competition between the imported products and the conditions of competition between the imported products and the similar domestic product.
"Negligible" as referred to in the previous paragraphs shall mean that the volume of the dumped imports from one country (region) accounts for less than 3% of imports of the similar product in the importing country, unless countries (regions) individually account for less than 3% of the imports of the similar product collectively account for more than 7% of the import of the similar product in the importing country.
Article 17 The following factors may be taken into account in cumulatively assessing the impact of dumped imports:
17.1 the sustainability and likelihood of injury to the domestic industry caused by dumped imports from various countries (regions);
17.2 the substitutability between dumped imports and a similar domestic product from various countries (regions), including specific requirements of customers, quality and other relevant factors;
17.3 the sales prices, seller's quotations and actual prices of transactions of dumped imports and the domestic similar products within a regional market;
17.4 whether the dumped imports from various countries (regions) and the domestic similar products share the same or similar sales channels and whether they appear in the market simultaneously;
17.5 other conditions of competition between dumped imports and the conditions of competition between dumped imports and the domestic similar products;
17.6 other factors.
Article 18 The SETC shall take into account public interest in the investigation and determination of industry injury and may investigate the effects of anti-dumping measures on public interest.
The SETC shall provide full opportunities for users and consumers of the dumped imports to present statements and evidence.
Article 19 The investigation period of injury to domestic industry in anti-dumping cases shall be three years prior to the initiation of the investigation.
Chapter 3 Investigation of Injury to the Domestic Industry
Article 20 The SETC shall commence the review of the application for initiating an anti-dumping investigation and its evidence attached after receiving from the Ministry of Foreign Trade and Economic Cooperation (hereinafter as MOFTEC) such application and evidence and a MOFTEC consultation request. The review shall determine whether an anti-dumping investigation shall be initiated within 30 days thereafter; if necessary, the review period may be extended by another 15 days.
Should the SETC determine the application and its evidence as incomplete, the applicant shall provide further documents to make the same complete within the prescribed period as requested by the SETC.
Article 21 The application for Anti-dumping Investigation shall include the following evidentiary materials:
21.1 The materials required to be included in the application according to the Anti-dumping Regulations;
21.2 the type of injury, i.e. material injury, threat of material injury or retardation of establishment of the domestic industry;
21.3 If two or more countries (regions) are involved, the reasons and justifications of cumulative assessment shall be provided;
21.4 other factors contributing to the injury to domestic industry and other evidentiary materials.
Article 22 The investigation may be initiated when the application is considered to have been made "by or on behalf of the domestic industry" if it is supported by those domestic producers whose collective output constitutes more than 50 per cent of the total production of the similar product produced by that portion of the domestic industry expressing either support for or opposition to the application. However, no investigation shall be initiated when domestic producers expressly supporting the application account for less than 25 per cent of total production of the similar product produced by the domestic industry.
Article 23 All interested parties that apply for the defense of the anti-dumping investigation shall submit such application to and register for that purpose with the SETC within 20 days after the date of the public notification of initiation of investigation; and shall provide information about their production capacity, output, inventories, production expansion plan; export volume and value of the products exported to China; volumes and values of the products imported by their importers.
Article 24 Interested parties may include:
24.1 foreign producers, exporters, importers of the product in question; or the trade societies or other organizations of the producers, exporters and importers;
25.2 the governments and the representatives of the countries (regions) of origin or exporting countries (regions) of the product in question;
25.3 producers or dealers of the domestic similar product, or their trade societies and other organizations.
25.4 other parties.
Article 25 The interested parties shall provide relevant identity documents. In cases where the interested parties are enterprises or other organizations, business licenses or other registration certificates of such enterprises or organizations as well as the identity information of legal representatives thereof shall be provided.
In cases, where interested parties designate their representatives for the purpose of the investigation, identity information of such representatives and an affidavit of authority shall be furnished. In cases where lawyers are designed as the representatives, only Chinese law firms and Chinese licensed lawyers can be designed, whose business license and practice license shall be submitted together with the affidavit of authority for that purpose.
Article 26 The objects of the investigation of injury to domestic industry shall include domestic producers, domestic importers, domestic buyers and end users, foreign producers and dealers of the product in question.
Article 27 The SETC may engage experts in the industry, accounting and finance, trade and commerce, law etc. to provide expert opinions if necessary. Such experts shall keep relevant information confidential.
Articles 28 The SETC may use questionnaires, sampling, hearing, technical appraisal, on-the-spot investigation and other methods in the investigation of industry injury.
Article 29 The questionnaires distributed by the SETC to interested parties may include questionnaires for domestic producers, domestic importers, foreign producers and exporters, and other types of questionnaires.
Article 30 Interested parties shall return the questionnaires in the manner and within the time limit as prescribed by SETC. Any request for extension of the time limit shall be made seven days prior to the end of the time limit and be presented, on request, in writing to the SETC. Such request shall be subject to the approval by SETC.
Article 31 The SETC may carry out on-the-spot investigation of interested parties. Prior to the on-the-spot investigation, interested parties shall be informed of the main intention and content of such investigation.
Article 32 Subject to the approvals by the concerned countries' (regions') authorities, if requested by the interested parties or necessitated by the practical needs of the investigation, the SETC may assign personnel to such countries (regions) to investigate the production capacity, expansion of capital or production, inventories, origin, entrepot trade, relationships between firms etc.
Article 33 The SETC may require the interested parties to provide or supplement written materials; the interested parties may voluntarily submit written materials to SETC.
Article 34 As requested by interested parties and determined to be necessary by the SETC, an industry injury hearing may be carried out pursuant to the Provisions for Carrying out the Hearing of Industry Injury.
Article 35 After receiving the MOFTEC consultation letter and attached evidence concerning a price undertaking, SETC shall review and determine whether such a price undertaking is sufficient to eliminate the injury to domestic industry within 30 days; if necessary, such period may be extended by 15 days.
Should the SETC determine that the relevant evidence is incomplete, exporters that take out price undertakings or accept suggestions of price undertakings shall provide supplementary information or evidence as requested by the SETC within the prescribed time limit.
Article 36 In cases where exporters fail to take out price undertakings or refuse to accept price undertaking suggestions, the investigation and determination of injurious effects on domestic industry shall not in any way be hindered; should the exporters continue to dump the imports, the SETC shall be entitled to determine that the injury to domestic industry is more likely to occur.
Article 37 Should the SETC find the price undertakings acceptable, the investigation into the injurious effects on domestic industry shall be suspended or terminated.
Article 38 The suspended or terminated investigation may be resumed if requested by exporters or determined as necessary by the SETC.
Article 39 In cases where exporters have violated the price undertakings, the SETC may resume the investigation and determine the injury to the domestic industry on the basis of the best available information.
Article 40 The interested parties to an investigation providing materials or evidence on a confidential basis shall furnish a non-confidential summary of such materials or evidence, or furnish a confidential text and a public text separately.
The non-confidential summary or the public text shall express the substance of the information or evidence submitted in confidence in a reasonable manner; otherwise, the SETC may require additional materials or evidence.
Article 41 If the SETC finds that a request for confidentiality is not warranted and if the interested partyproviding the information is either unwilling to make the information public or to authorize its disclosure in a summarized form, the SETC may disregard such information; if the SETC determines that the request for confidentiality is not warranted, SETC may require the intered parties providing such information to withdraw such arequest.
Article 42 During the investigation and determination of the injury to the domestic industry, the interested parties shall provide information and materials truthfully. In cases in which any interested party refuses access to, or otherwise does not provide necessary information within a reasonable period, or significantly impedes the investigation, the SETC may make determinations on the basis of the known facts and the best available information.
Article 43 After the initiation of the investigation and prior to the final determination, any interested party shall be provided access to the public information relevant to the investigation at SETC. Within a reasonable period after the final determination, the interested parties may see the public information at SETC too.
Article 44 The interested parties shall provide identity documents and go through the prescribed procedures prior to seeing the public information.
Article 45 The interested parties may copy the public information, but must not remove the originals of such information from the SETC.
The SETC shall provide necessarily facilities for the interested parties to see the information.
Chapter 4 Determination of Injury to Domestic Industry
Article 46 SETC shall make a preliminary determination of the existence of the injury and the causal relationship between the dumping of the imports in question and such injury on the basis of the results of preliminary investigations.
Article 47 If it is preliminarily determined that the dumping has had injurious effects on the domestic industry and such injurious effects are causally related to the dumping, the SETC shall carry out further investigation into the injury and the magnitude thereof prior to the final determination of the injury and the causal relationship between the injury and the dumping.
Article 48 The investigation of injury to the domestic industry shall be terminated in cases where:
48.1 the applicants withdraw their applications for anti-dumping investigation;
48.2 there is no sufficient evidence to prove the causal relationship between the dumping and the injury;
48.3 the actual or potential volume of the importation of the product in question is negligible;
48.4 The SETC decides it is inappropriate to continue the investigation on the basis of public interest considerations.
If 48.2 and 48.3 are applicable to the importation of the products in question from one or several countries (regions), the SETC shall terminate the investigation of the products in question exported from such countries (regions).
Article 49 After the anti-dumping duty takes effect, the SETC shall review all the relevant evidence and provide its opinions with regard to whether to carry out a mid-term review after receiving the MOFTEC consultation letter and attached evidence for such purpose. Such review by the SETC shall be completed within 30 days and may be extended by another 15 days if necessary.
The period of anti-dumping duties and price undertakings shall not exceed 5 years. Six months prior to the end of such period, SETC shall furnish a public notification regarding the pending maturity of anti-dumping duties and price undertakings. Domestic industry or the representatives thereof shall submit their applications for sunset review within 20 days after the date of release of such notification.
Within 30 days after the above 20 days period for sunset review applications, SETC shall review all relevant evidence of sun-set review applications and carry out sunset review regarding whether the termination of anti-dumping duties or price undertakings will cause the injury to continue or reoccur; if necessary, an extension of 15 days may be made.
If no sunset application has been submitted by the domestic industry and their representatives and it is found necessary by the SETC, the SETC may, by its own decision, carry out the sunset review regarding whether the termination of anti-dumping duties or price undertakings will cause the injury to continue or reoccur.
If the SETC finds the relevant information or evidence incomplete, the SETC may require the interested parties to furnish supplementary evidence within a prescribed period.
Article 50 The SETC shall make an official verdict with respect to the findings of midterm and sunset reviews.
Article 51 On the basis of the findings of the reviews, the SETC shall review all relevant evidence provided and decide whether to maintain, revise or call off the undertakings within 30 days after receiving the MOFTEC consultation letter and attached evidence for such purpose; an extension of 15 days may be made if necessary.
If SETC finds the relevant information or evidence incomplete, the SETC may require the interested parties to furnish supplementary evidence within a prescribed period.
Article 52 The procedures of the reviews carried out by the SETC are according to the relevant provisions concerning antidumping investigations.
Chapter 5 Circumvention and Anti-circumvention
Article 53 The following activities constitute circumventions of anti-dumping measures:
53.1 exportation of the products in question to China after being assembled or processed in a third country (region);
53.2 exportation of the products in question to China after such products are changed or processed in form in order to qualify as another tariff item that is free from anti-dumping duty;
53.3 exportation of parts and components of the product in question to be assembled in China;
53.4 exportation into China of the subsequent products of the products in question.
53.4 other activities
Article 54 The SETC may carry out anti-circumvention investigations in respect of the above circumvention activities.
Article 55 A determination of circumventions shall take into account the following factors:
55.1 whether circumventions as described in Article 53 occurred before and after the initiation of anti-dumping investigations;
55.2 the value of the parts and components of the products in question exported from the dumping countries (regions) or third countries' (regions) accounts for a significant portion of the value of such products.
55.3 the value of raw materials of the products in question exported from the dumping countries (regions) or third countries (regions) accounts for a significant portion of the value of all the raw materials of such products;
55.4 the added value after the processing or assembling the products levied of anti-dumping duties accounts for an insignificant portion of the values of the processed or assembled products;
55.5 the circumventions significantly reduce the effects of anti-dumping duties;
55.6 the matters of fact in respect of the dumping and injury of the products levied of anti-dumping duties;
55.7 other factors.
Article 56 If the circumventions of anti-dumping measures cause injury to domestic industry, SETC may take appropriate measures to prevent such circumventions.
Chapter 6 Supplementary Provisions
Article 57 The interested parties shall furnish original documents and evidence in quintuplicate in Chinese together with electronic versions (floppy disks or CD-ROMs) of such documents and evidence in triplicate.
Article 58 The official languages of industry injury investigations and determinations of the SETC shall be generally used languages as prescribed by the language use authorities of the PRC. All the documents, materials and information provided by the interested parties shall be in such generally used languages. The materials written in other languages shall be accompanied by translated versions in the generally used language as described above. The translated versions shall prevail over the versions in their original languages. Written materials furnished in languages other than the generally used languages and not accompanied by translated versions shall not be accepted as valid and legitimate evidence.
Article 59 The SETC reserves the right of explanation in respect of the Provisions.
Article 60 The provisions shall take effect from January 1, 2003